Contesting a will takes place when someone believes that a will was not drawn up correctly or that the person didn’t mean to set it up the way that he or she did. Contesting a will is not easy, but may sometimes be necessary to preserve the proper distribution of an estate. California law recognizes the following people as having standing to contest a will; “An heir, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” The Code states the meaning of interested person may vary and will be determined according to the particular purpose of the proceeding and the particular matter involved. If you have standing, you may contest a will.

Contesting a Will in California

Under California case law the general rule is that someone who wants to contest a will must have a financial interest own the deceased person’s estate that may be impaired or defeated by probating of the will according to its terms. Basically, the Court wants to know if you would have gotten more money from the estate if not for the will that you want to contest.

Some examples of people with standing include:

▪An heir at law is a person who would have inherited any portion of the estate, if decedent had died without a will (intestate).

▪A predetermined heir includes the decedent’s children, spouse, or registered domestic partner who wasn’t mentioned or provided for in the will or other testamentary instrument.

▪Someone who was a beneficiary under an earlier will and who now get less or nothing because of a later will.

▪Someone who was a beneficiary under later will but got less or nothing at all because of an earlier will that was offered for probate.

▪A secured creditor of decedent’s heir when the heir has been disinherited by the will.

▪An executor under an earlier will that was admitted to probate who must then defend it against a later will.

Grounds for Contesting A Will

If you have standing to contest the will you need a good reason that you believe that the will is incorrect. The following grounds or reasons are acceptable by the Court;

Revocation: Evidence that the decedent had revoked the will that has been offered for probate.

Lack of Capacity: Evidence that the decedent was incapable of forming the intent necessary to prepare a will. If the person can prove that the person making the will was suffering from mental incapacity to the degree that he or she did not know that they were making a will and/or did not know the nature or extent of his assets, nor the identity of their family, one may be able to establish that the creator lacked the requisite mental capacity to make a will. Evidence in this regard may include medical records, witnesses who had interaction with the testator and, possibly, the opinion of a forensic psychiatrist.

Fraud: If a person can prove that the testator signed the will document without knowing or realizing that it was actually a will, or that he wot she was given misinformation that caused him to sign the will in its present form or to change the distribution plan of a prior will, one may be able to establish that he was fraudulently influenced.

Misrepresentation: Evidence that someone made misrepresentations to the decedent that influenced the preparation of the will.

Menace: Evidence that someone threatened the decedent into preparing the will that you wish to contest.

Duress: Evidence that the decedent would not have prepared the will if the decedent had not been unlawful confinement or detention.

UndueInfluence: If a person believes that another person applied undue pressure to the testator to change the distribution made in a prior will and/or to disinherit someone who would be the natural object of his bounty, that circumstance may perhaps show undue influence, which is often another basis to challenge a will.

Mistake: Evidence that the decedent made a mistake in how he or she prepared his or her will that results in you not getting what the decedent intended you to receive.

Lack of Due Execution: Evidence that there are some problems with how the will was executed, such as a failure to have the will properly witnessed or the will was not signed by the decedent. If a person can show that the will was not properly executed according to state law, this may furnish another basis to contest a will. Example: the testator did not sign in the presence of the required number of disinterested witnesses, or that the actual signing was not properly witnessed.

Forgery: Evidence that the will offered for probate was a forged will.

If you believe that you have unfairly lost your inheritance, contact us to discuss your options. Please be aware that time is of the essence in these types of matters. California law permits you to file a contest with the court either before or after a will is admitted to probate, but there are strict time limitations for filing a will contest. Failing to file a will contest in time will be fatal to your will contest.

Probate in California is a court-supervised process that is used to oversee a person's legal and financial affairs after death, usually overseen by probate lawyers in California. Probate consists of gathering a deceased person's assets, proving the validity of the will, appraising the estate property, paying estate taxes and then distributing the property as directed by will or state law if there is no will.

Essentially this is the process of determining the rights and obligations of a person’s legal and financial matters after their death. Probate is the way to transfer assets, resolve debts and clear title so the decedent’s assets can go to the rightful heirs. Often, it is a complicated and time-consuming process.

Why You Need a Trust to Help Avoid Probate

A man living in Pasadena has just retired. He is a widow and has two children. After working hard for many, many years he has considerable assets and property. Just as he is about to start the next phase of his life, he passes away unexpectedly. Unfortunately, he died without a living trust. His children who have always gotten along well are now finding themselves going through the grief of losing their father and fighting over his assets. Further frustrations arise when they find out just how long probate will take and how expensive.

Probate Court in California

This is exactly the type of situation probate courts see every day, a situation that could have been helped if the decedent only had a trust. In California, if someone dies with no estate plan at all or only a will and real estate worth more than $50,000, that person’s estate must be probated. Now, instead of an easy transition, the California laws of the state will determine the outcome of how the assets will be distributed. This is a court procedure that includes transferring a deceased person's assets to the beneficiaries listed in their will, proving the validity of the will; inventorying and appraising the estate property; paying any debts or taxes (including estate taxes); distributing the property as directed by their will or state law if there is no will.

If you do not have a trust in place, it is very important that you seek a knowledgeable Estate Planning Attorney to help you obtain one.

The First Step Towards a Comprehensive Estate Plan

There are many benefits to having a trust. For starters, as illustrated above, having a valid trust in place can take the burden away from your loved ones. They can rest easy knowing that your wishes will be carried out without the State of California interfering. All of us want to keep our families out of Court and out of Conflict, but too many of us fail to put a plan in place that that will do this.

Talk to a skilled Estate Planning Attorney in Los Angeles County about your specific needs and get peace of mind. The process of probate administration is made substantially easier, and safer, when a California probate lawyer is made part of the process helping to guide your estate through the system. As an experienced probate attorney Chris Scarcella regularly assists clients with California probate administration and make it as easy as possible to navigate the probate process.

When creating an estate plan, setting up a trust can be an integral part of the process. You can structure your trust so that money is set aside and made readily available for the beneficiaries when they hit a certain ages or milestones in their lives. Your trust can ensure that your loved get your inheritance according to your terms, with the least amount of difficulty along the way. While there are many benefits of establishing a trust, here are a few common ones.

Estate Taxes can be avoided.

If your estate is large enough, your loved ones may be forced to pay the dreaded death taxes. But this tax is voluntary! Proper planning that typically involves the blending of trusts and life insurance can prevent your loved ones from having a fire sale of all of your assets to pay Uncle Sam.

Avoid Probate at all costs.

Anything held in a trust will avoid the costly and inefficient probate process, no exceptions. Probate is an expensive process involving the courts that deals with transferring the property of someone who has passed leaving it to their beneficiaries or heirs. The court also decides if the will left behind is still valid and takes care of the financial responsibilities of the person who had died.

Protecting the inheritances from beneficiaries, themselves

If someone you love is less than responsible, you shouldn’t just cut him or her out of your inheritance. Instead you can carefully plan so that if that person is the type who has a nickel and spends five dollars, they don’t get everything at once. Substance abuse problems? Your trust can guard against that, too.

Educational funds.

If education is something you value, you can set aside money in your trust for school expenses and provide graduation incentives to your beneficiary.

The beautiful part about your trust is that you get to makes the decisions about what happens to your estate after you die. Meeting with a respected estate planning attorney such as Christopher Scarcella is a great start to creating legacy of love and care.

]]>Fri, 15 Jan 2016 16:43:00 GMTBlogshttp://scarcellaw.com/lawyer/2016/01/15/Estate-Planning/How-Much-Does-it-Cost-for-an-Estate-Plan_bl23105.htmThis can be a difficult question to answer because it depends. I can assure you it is better to seek legal counseling than simply going online to do it yourself. Sure, if you are looking to plug your name into a couple standard documents, you can do it online for free or very cheap yourself. Then you can wait and see what happens. However without the guidance of an attorney there may be mistakes that end up costing your heirs a LOT more than what you saved on legal fees initially. Do you really want your last thoughts to be, “I hope this works?”

Questions that can determine the cost of an Estate Plan

While a fee can’t be quoted without knowing you personally, here are the factors that most attorneys consider when determining prices:

- Are you single or married (nearly doubling the number of legal documents to be created)?

- Do you have any children with another partner or does your spouse?

- Do you expect anyone to challenge your wishes?

- What if your spouse wants to remarry if you die?

- Do you need to avoid estate taxes?

- What type of distributions would you like to make?

Why Choose an Estate Planning attorney?

An Estate Planning Attorney is here to help you make the most informed choices for your loved ones based on your unique family and financial circumstances; no two families are alike. The simple truth is that for every homeowner in California, a will is not enough. Leaving only a will or having no plan at all will force your family to court after you pass. An estate planning attorney can give you the guidance to make sure you choose the right plan and to make sure it succeeds.

Is a Living Trust right for you?

A Living Trust may not be needed for everyone, especially if you don’t own a home and have an estate less that $150,000 and have no children. You might be fine instead with a simple will to say who you want to get what. Every situation must be determined on a case-by-case basis, and for more info about all this you might be interested to read some of the materials on trusts. Of course, you’re welcome to schedule an appointment for a legal recommendation based on your particular situation.

Fortunately, in this area there are a lot of lawyers available so it becomes a matter of preference.

How do you find the Attorney that is right for you?

You will need a lawyer who’s practice focuses in area of the “Estate Planning Law.” An estate planning attorney will know what questions to ask so he/she can spot the issues that will likely need to worked out, instead of leaving them to your family after you pass.

When choosing an attorney, seek to find the one with the right combination of skills, experience, and “fit” between you and him or her. You should feel comfortable your attorney, as this person will serve as a trusted advisor in the years to come whenever there’s a change in your finances or family dynamics. Please contact Chris Scarcella, Esq. for a consultation to meet with an estate planning attorney who has won numerous client appreciation awards.

They are there for you every morning when you wake up and every night before you go to sleep. They unconditionally love you and light up every time you walk into a room or arrive home from a long day. They are always there to comfort you and have a way of cheering you up when you are down. They bring you so much joy and love. Yes, its your beloved pet.

Legally speaking, your pets are personal property. But when you pass, your fuzzy companion should be treated differently than the artwork on your walls or the dining room table your daughter has been eyeing. You should take the time to spell out who will be responsible for your best friend because any pet, big or small, is a lot of work, and will need extra love to deal with the transition of life without you.

What a Pet Trust does

Pet trusts let you set aside money to pay for your pet’s care and appoints a caretaker. When the time comes, you’ll leave detailed instructions for how your pet’s medical or other needs will be handled. You can make sure your pet is going to the right home where you know it will be treated and loved the way you would like.

Legal Documents for your Pet - Will vs. Pet Trust

Wills distribute your property, and because your pet is considered personal property, you can will your beloved pet to anyone of your choosing. The problem is that a will is not enacted immediately so you can not be sure who will look after your animal during the waiting period. I addition, wills do not have provisions for your incapacity, so who will take care of your animal during your life if you are unable to? Lastly, a will does not provide for funds to be distributed for a pet’s care during its lifetime, so there’s no promise that the money set aside for the care of your animal will go towards its care.

A Pet trust has many advantages over a will.

Pet trusts are valid during the pet owner’s life and death.

Pet trusts can help avoid problems with substantial and involved estates. Pet trusts are particularly useful if the client expects a contest to the estate.

Pet trusts and pet protection agreements control the disbursement of funds exactly as you see fit.

Pet trusts allow for an investment trustee. A trust protector (separate from the pet guardian or trustee) can be appointed to invest funds with a view toward growth of the principal and future use on behalf of the pet, heirs, and charitable recipients.

Pet trusts and pet protection agreements allow provisions for incapacity. Pet trusts and pet protection agreements can ensure that the you and your pet will remain together in the event that you to a nursing home or other long-term care facility.

Without a pet trust or protection plan in place you can not be sure that your animal will be well taken care of and even worse end up in an animal shelter.

Facts About U.S Animal Shelters

According to ASPCA “There are about 13,600 community animal shelters nationwide that are independent; there is no national organization monitoring these shelters. The terms “humane society” and “SPCA” are generic; shelters using those names are not part of the ASPCA or the Humane Society of the United States. Currently, no government institution or animal organization is responsible for tabulating national statistics for the animal protection movement. These are national estimates; the figures may vary from state to state.

Approximately 7.6 million companion animals enter animal shelters nationwide every year. Of those, approximately 3.9 million are dogs and 3.4 million are cats.

Each year, approximately 2.7 million animals are euthanized (1.2 million dogs and 1.4 million cats).

Approximately 2.7 million shelter animals are adopted each year (1.4 million dogs and 1.3 million cats).

About 649,000 animals who enter shelters as strays are returned to their owners. Of those, 542,000 are dogs and only 100,000 are cats.

Of the dogs entering shelters, approximately 35% are adopted, 31% are euthanized and 26% of dogs who came in as strays are returned to their owner.

Of the cats entering shelters, approximately 37% are adopted, 41% are euthanized, and less than 5% of cats who came in as strays are returned to their owners.

About twice as many animals enter shelters as strays compared to the number that are relinquished by their owners.”

]]>Fri, 08 Jan 2016 14:47:00 GMTBlogshttp://scarcellaw.com/lawyer/2015/12/22/Estate-Planning/An-Estate-Planning-Attorney-for-Cinderella-_bl22772.htmYou might be familiar with the story of Cinderella, but we often forget the backstory. It starts with disaster, specifically, an estate planning disaster in a world that does not worry about the estate tax or probate, or even lawyers. What a magical place, indeed!

Even though Cinderella ended up getting her happily ever after, thanks to her fairy godmother and the marriage to her prince, the injustice she endured in the process could have been easily avoided with a simple estate plan. We live in the real world and must prepare for the worst because fairy godmothers and princes are few and far between.

Finding an Attorney to Create your Estate Plan

Fairy tales may end well because of magical fairies and rodents, but like Cinderella, they start with avoidable tragedy common to the human experience. A good estate-planning attorney will counsel a family to avoid what can be avoided.

Failing to make a plan guarantees a visit with the courts, and invites litigation. Litigation attorneys in the trust and estates world are not fairy godmothers. They may fight injustice, but unlike those fictional do-gooders, litigation attorneys demand payment. Beyond expenses, litigation is burdensome in many other ways. There is no guarantee that estate planning will eliminate litigation, but we can certainly plan and reduce the risk of it.

Why Estate Planning is Crucial for Blended Families

Cinderella’s mother died when she was a child and her father decided to remarry a woman with two girls about the age of Cinderella. The father being in the “honeymoon stage” thinks this blended family is the perfect situation for him and Cinderella. A few scenes later, he dies, leaving the estate to his widow (the normal thing to happen in the real world)- the infamous Wicked Stepmother. The stepmother takes control of the estate for the benefit of herself and her two daughters and forces Cinderella to become a servant in what should have been her own home! Cinderella is so degraded that she’s forced to make friends with birds and rodents.

Cinderella’s Dad Could Have Found a Los Angeles Estate Planning Attorney

In the non-Disney world, wicked stepmothers are everywhere. We call them bankruptcy trustees, judgment creditors and yes, actual wicked stepmothers. The stories of modern-day Cinderella’s are remade and retold every day throughout the country and are seen in real life situations.

The parents of Cinderella were not bad people in life; they just failed to properly plan. They failed to consider for the sake of their daughter creditor protection, remarriage protection, guardianship, and special needs. If you have children and do not have a proper plan in place, you will be taking a huge gamble on their well being.

If Cinderella’s father had created a plan a trustee, someone would have protected Cinderella. She would have received money for health, education, and other supports she needed until she grew old enough to take manage the trust herself. Cinderella’s dad could have included provisions to guard how the trust was spent; it could have limited how much money she could receive at certain ages, or limit her ability to use the money for housing needs, investment purposes, or school expenses. You can be creative with estate planning to make sure to benefit your children.

5 Steps You Need to Consider for your Estate Plan

1) Nominate a Legal Guardian2) Decide if you want the Legal Guardian to have instant access to the trust fund or to appoint a separate Trustee to manage the money3) Use a California licensed attorney4) Give a copies to those you love and trust5) Revisit your flan every couple years to make sure your plan is up-to-date

Finding Your Perfect Estate Planning Attorney

Planning out your finances is something you automatically do but an estate plan in place should be at the top of your list, unfortunately most people make the mistake of not getting to it at all. An estate plan may seem like a morbid thought, or the last thing on your mind, but without a proper plan in place something simple could become a nightmare.

The number one worst mistake you can make is not having any estate plan at all like in the case of Cinderella. If you do not have an estate plan, California law has one for you. The problem is that it may not work the way you would have wanted.

The goal of an estate plan is to bring comfort to yourself and you loved ones and ensure that your assets are distributed to their beneficiaries properly with the least delay and without incurring unnecessary legal fees, costs or taxes.